Ummmm … Ahhhhh … Er … (You on the Witness Stand?)

Don’t terminate without running through this list of hidden problems, says attorney Edward M. Richters.

Richters is a partner at national employment law firm Jackson Lewis, LLP; his comments came at a recent workplace law symposium.
(Go here for more of Richters’ tips in yesterday’s CED.)

Check for Hidden Problems

Every termination must be preceded by a thorough search for potential problems, warns Richters. For example, check to see if there are any:

• Potential discrimination claims. Is the person a member of a protected class? Most employees are, Richters notes.
• Potential harassment claims.
• Potential retaliation claims. For example, has the person
  • Filed a grievance?
  • Complained to an agency?
  • Filed a discrimination or EEO complaint?
  • Complained about a workplace safety issue?
  • Made a complaint under Sarbanes-Oxley?
• Potential FMLA problems. If attendance has been atrocious, did you ask why?
• Potential ADA problems. If the person can’t do the job anymore, did you have the interactive discussion?

As part of your pre-termination evaluation, ensure that the employee has been given fair warning and opportunity to improve. Juries expect this. In addition, you must be able to:

• Present a valid basis for your finding of misconduct;
• Show that you conducted an appropriate investigation; and
• Demonstrate that you gave the employee an opportunity to explain or respond.

If you do realize that one of these potential problem situations exists, take a few steps back, says Richters. As was mentioned in yesterday’s CED, delaying is often a good thing.

Your final pay obligations under California law for departing employees—webinar next week!

Check It Out

It doesn’t hurt you to find out what really happened. Ask the employee, “Three witnesses confirm that you did it; what’s your side of the story?” When the employee responds, you usually get one of three reactions, Richters says:

1. I did it.
2. I did it but with a twist—I had a good reason. At least, says Richters, now you know what the plot is.
3. I didn’t do, it and I have witnesses who will vouch for me. Now you have something to check out. 

Ummmm … Ahhhhh … Er …

And you do have to check out the story, says Richters. Otherwise, you’ll be on the witness stand trying to explain why you didn’t follow up with those witnesses. “You just assumed that this person was guilty,” says the employee’s attorney. “Was it the fact that he is Hispanic?”

“You don’t want to be on the witness stand trying to explain why you didn’t follow up those leads,” says Richters.

Final Pay Obligations in California: Tips for Minimizing Your Legal Risks When Employees Leave

Live webinar coming Thursday, April 4, 2013—next week!
10:30 a.m. to Noon Pacific

Whether it’s a sudden resignation or a zero-tolerance immediate discharge, the clock is ticking on the employee’s final paycheck. And if you get it wrong, you can face stiff penalties under California’s Labor Code.

You also need to make sure you’re prepared for other various “last pay” considerations, including severance and questions regarding unemployment claims.

It can take just one disgruntled parting employee to represent a class of similarly situated individuals and initiate a wage and hour class action that could devastate your company. So it’s worth your while to make sure your final pay procedures are up-to-date and in order.

Don’t miss our California-specific webinar next Thursday, April 4, when we’ll explain:

• The timetable for paying wages upon termination for employees here in California—and whether a resignation vs. a firing affects your obligations
• The waiting-time penalties you could be subjected to if you don’t follow the California Labor Code when administering final pay
• How to properly calculate the amount of vacation pay, sick leave pay, and commissions owed upon separation of employment
• Loans and damage or failure to return company property—the limitations California law places on your ability to withhold pay when you want your money or equipment back
• Best practices for enforcing a reimbursement agreement 
• The game plan to follow if the employee claims you still owe him or her money
• 3 crucial documents you should be up to speed on
• Key points to remember about the change in relationship letter, DE 2320, and COBRA
• Severance pay and separation package pointers, including the type of writing you should draft in support of any severance or separation agreement
• The types of claims that you’re permitted to release with proper monetary “consideration”—and the ones you can never release
• When you should consider contesting a claim for unemployment, and when you might consider not responding
• Important pre-termination and termination tips to follow so you can minimize potential legal liabilities
• And much more!   

In just 90 minutes, you’ll learn how to ensure you’re ready to handle all of your final pay obligations, even if an employee’s departure is sudden.

Register now for this informative event, especially for HR professionals in California.

Download your free copy of Training Your New Supervisors: 11 Practical Lessons today!